ERIC S HAWTHORNE, Employee
TRIANGLE MECHANICAL INC, Employer
An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.
The decision of the administrative law judge is affirmed. Accordingly, the employee's request for hearing is dismissed, and the department determination remains in effect.
Dated and mailed May 8, 2009
hawther . usd : 115 : 1
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The employee's appeal was sent and received through facsimile transmission on March 10, 2009.
The standard for excusing a failure to timely appeal a department determination is "reason beyond control." This is a very rigorous standard, and only extraordinary reasons have been found by the commission to satisfy it. See, Jerome Kosmoski, UI Hearing No. S9900245MW (LIRC March 22, 2000).
The employee explains that he did not receive the determination until he requested and received a duplicate copy some time in January 2009.
There is a rebuttable presumption that mail properly addressed and placed in the postal stream is received. State ex rel. Flores, 183 Wis.2d 587 (1994). See, also, Hong v. Pedro's Mexican Restaurant, UI Hearing No. 98001460MD (LIRC June 29, 1998); McLeod v. West Bend Fence, UI Hearing No. 03608301WB (LIRC March 31, 2004). The commission has held that the fact that a department decision is contained in the department's file with a date indicating it was mailed, and the fact that the department's file does not reflect that the decision was returned, adequately proves that the decision was placed in the postal stream. Cline v. Initial Security, UI Hearing No. 99400303GB (LIRC May 10, 1999); In re: Toddliz, Inc., UI Hearing Nos. S9800272MD, etc. (LIRC Feb. 23, 2001). The record here reflects that the department determination was properly addressed to the employee's address of record and set forth a mailing date, and the department file reflects that the determination was not returned to the department.
The burden would then shift to the employee to rebut the presumption of receipt. The employee failed to satisfy this burden. The administrative law judge did not credit the employee's testimony that he had not received the determination during the appeal period, and the commission has found no persuasive reason to overturn this credibility determination. The employee testified that he had experienced no problems receiving his other mail at his current address. See, e.g., McLeod, supra. (not plausible that employer would receive all its mail except two pieces of correspondence from the department). Moreover, the employee proved a poor historian during his testimony, being unable to pinpoint with any degree of certainty when he spoke to a department representative or when he received the duplicate determination, or to remember whether he attempted to reach the department adjudicator.
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